New York Criminal Attorney Blog
In 2017, New York case law created a new precedent indicating that when identification is an issue in a criminal case, and when the identifying witness and defendant are seemingly of different races, the defendant is entitled to a charge on “cross-racial identification.”
This means that when a witness identifies a defendant as the person that committed a crime, and when the witness and defendant are of different races, the defendant has certain rights. The defendant can, for example, request expert testimony, specific questioning, or a jury instruction on what it means to identify a person of a different race. The relevant case law is based on the theory that it is easier to make a mistake when identifying a person of a different race.
Assault and Criminal Possession Case
In a recent case before a New York court, the defendant pled not guilty to assault and criminal possession of a weapon. The victim of the assault was the only person who saw the crime happen, and the entire case was built on the victim’s identification of the defendant as the one who assaulted him. Of note, the defendant and the victim were different races.
A jury found the defendant guilty, and he appealed. He argued that his defense counsel was ineffective because they did not take this possibility of mistaken identification of a person of a different race into account. He should, he argued, be given an entirely new trial.
The higher court noted that the defendant’s case was decided prior to the 2017 case law giving defendants the right to the charge on cross-racial identification. Therefore, said the court, it was not strictly necessary for the defense attorney to bring up this topic in court. In addition, the attorney’s failure to present argument on the dangers of cross-racial identification was not so harmful that it could have lost the defendant his case entirely. Therefore, it was not enough to warrant granting the defendant’s appeal.
The Dissent
In one dissent, the disagreeing judge said that the defense attorney should have, without a doubt, asked the Court to instruct the jury on the dangers of cross-racial identification. The victim’s testimony was the only evidence tying the defendant to the crime, and it was entirely possible that the victim was mistaken – especially because the two individuals were of different races.
Overall, this is an issue that will continue to develop over the coming years in New York criminal courts. When in doubt, the best thing you can do is hire a New York criminal defense attorney that you are sure is using every possible angle and every possible argument to get you the results you need.
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